ELECTION AND DEFECTION OF GOVERNORS IN NIGERIA; A CALL FOR LAW REFORM.

The Court is said to be the last hope of the common man. In the Constitution of the Federal Republic of Nigeria, 1999 (CFRN 1999), it is the adjudicatory body and also responsible for interpreting and applying laws.
It seems however, that in the course of interpreting laws, the courts have turned into law makers themselves. While that is pardonable, it is quite disquieting that the courts have begun to engage in acts that cause a legal confusion rather than explain, in clear terms, what the law is.
In the case of Amaechi v INEC (2007) 18 NWLR (Pt. 1065) 98 the court held that Amaechi, who was the rightful candidate if his party, the People's Democratic Party (PDP), should be sworn in as governor, although he didn't contest in the election because his name was wrongly substituted by his party. The court's ratiocination was that it was the party (the PDP) that won the election and not the candidate. This judgment raised a lot of controversies as leading jurists such as Gani Fawehinmi, of blessed memory, opined that a fresh election should have been contested.
The National Assembly sought to change that legal position created by the Supreme Court by amending the Electoral Act. Thus, the Electoral Act, 2010, Section 141 thereof states that "an election tribunal or court shall not under any circumstances declare any person a winner at an election in which such a person has not fully participated in all the stages of the election". Thus, the clear object of that section was to obliterate and change the position of the law in Amaechi v INEC. However, the court equally responded to this amendment by nullifying it in INEC v Labour Party (2008) 13 NWLR (Pt. 1103) on the grounds that it is contrary to Section 4 (8) , CFRN 1999 which prohibits the enactment of any law which circumscribees the power of the court. Thus, the position of the law in Amaechi v INEC was restored. This position has been followed in a host of cases. Perhaps the most lucid application was the Kogi debacle in 2015. In the 2015 governorship election in Kogi state, the candidate of the All Progressives Congress (APC), Abubakar Audu, died while the election was going on, before a winner was declared because the election was declared inconclusive by INEC. The APC substituted their candidate who had died and INEC transferred the votes Audu had gotten to the new candidate, Yahaya Bello. Bello went ahead and won the election. When the matter reached the Court of Appeal, it was held that the APC could validly swap candidates given the circumstances and that votes could validly be transferred from Audu to Bello. This is because the votes belonged to the party. What then is the issue?
By virtue of Section 68 (1) g CFRN 1999, a member of the National Assembly who decamps from his political party to another one, subject to some exceptions, automatically loses his seat. In practice, we have actually seen instances where people have lost their seats due to that provision, though a lot have escaped it too. From that position, it is safe to say that in an election to the National Assembly, it is the political party that wins, and not the candidate. Compare that with the case of defection of governors (and the president too). The CFRN 1999 is silent on the consequences of their defection to another political party. Consequently, it is on record that there is no case where the court sacked a sitting governor because he decamped (defected) to another party. It is safe to say then that the position of the law with regards to the defection of governors is that they can conveniently retain their seat. I dare say that such a position is rather preposterous. If it is the political party that won the election, then why would the governor who leaves his party (that won the election and hence occupies the seat) still remain in office? Funny enough, even the same Rotimi Amaechi who became governor because it was his party that won the election because it was his party that won the election, defected to the All Progressives Congress (APC) and did not lose his seat. It is totally unfair to the political party. If you say that it is a political party that won the election, then the governor should automatically lose his seat because the people's mandate was given to the party and not to the candidate. Thus, it amounts to stealing their mandate and giving it to the wrong persons if a governor (or president) decamps retains his office. A leaf should be borrowed from the book of the legal position on the defection of National Assembly members.
There needs to be a reform in our legal system with regards to the role and status of political parties in Nigeria. If decamping of governors without them losing their seats should remain legal, then the votes on the election day should be for the candidates and not (only) the party. Likewise, if the votes on the election day are to accrue to the political party, then defection of governors should be a ground for terminating their tenure. This reform could either be in the form of legislative enactment or preferably a Supreme Court pronouncement which no court can overrule.
Omodia Patrick.